Acceptance of Terms

Merch Cat LLC (“Merch Cat”) provides a mobile and web-based software service (the “Service”) that facilitates the sale and tracking of inventory of merchandise at live shows for performing musical artists located in the United States or Canada (the “Artists”). The Service is connected to the mobile and web software platform Merch Cat FAN (the “Fan Service”) which facilitates the sale of this same merchandise to music fans who wish to purchase this merchandise in their own app. Both the Services and Fan Services (collectively, the “Services”) are operated under the umbrella of Merch Cat. Your use of the Services shall be referred to as having an “Artist Account” and your use of the Service acknowledges your agreement that you have read and accept all the terms and conditions (“Agreement”). If you do not agree, do not create an Artist Account or use the Service.

Merch Cat may modify the terms of this Agreement, in our sole discretion, and if so, may post amended terms to the MerchCat.com website (“Site”) and/or may notify you via email or the app. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes. Your continued use of the Service indicates your acceptance of the amended agreement. You agree to use the Service at your own risk.

Merch Cat FAN

If you access or use Merch Cat FAN features through your Merch Cat Artist Account, your use of those features is also subject to the Merch Cat FAN Terms and Conditions, which are incorporated into this Agreement by reference.

Participation

You must be eighteen (18) years or older to use this Service or create an Artist Account. Your participation in the Service and your creation of an Artist account may require that you supply certain personal information to Merch Cat. You can only create one (1) account per Artist and cannot combine Content of multiple artists under one (1) account. The information you supply may include your full legal name, a valid email address, and any other information requested in order to complete the signup process and must be full, complete, and accurate. You are required to maintain and update this information to keep it current, complete and accurate. By supplying any personal information you are consenting to its collection and agreeing that such data will be subject to the Merch Cat Privacy Policy. You are responsible for maintaining the security of the Artist Account and associated password. Merch Cat will not be liable for any loss or damage from your failure to comply with this security obligation.

Signing up

In signing up to use the Service, or during their membership, Artists may be requested to provide information to Merch Cat relevant to their membership. Artists will provide this information promptly and in good faith, and provide all other assistance and information reasonably requested by Merch Cat. For frequently asked questions about the Services, please visit our FAQ page at https://www.merchcat.com/faq.

Subscriptions

• Monthly Subscription: When you sign up for an Artist Account, you will purchase a monthly or annual subscription (“Subscription”) and you agree to an initial and recurring Subscription fee at the then-current Subscription rate. You accept responsibility for all recurring charges and you will be charged for the remainder of the period in which you cancel your Subscription. You may cancel your Subscription at any time, subject to the terms of our Cancellation Policy.
• Automatic Monthly Renewal Terms: If you choose a monthly Subscription, Merch Cat will automatically process your monthly Subscription fee in the next billing cycle. Merch Cat will continue to automatically process your monthly Subscription fee each month at the then-current monthly Subscription rate, until you cancel your subscription. We explain how to cancel your monthly Subscription below at the Section "Cancellation Policy”.
• Annual Subscription: By purchasing an annual Subscription, you agree to an initial pre-payment for one full year of the Service. After one year and annually thereafter, you will be billed a recurring annual Subscription renewal fee at the then-current annual Subscription rate. We will make commercially reasonable efforts to notify you before the renewal fee is billed. You may cancel your annual Subscription any time before the next billing cycle, subject to the terms of our Cancellation Policy.
• You accept responsibility for all recurring charges prior to cancellation. Once you subscribe, Merch Cat will automatically process your monthly or annual Subscription fee at the then-current Subscription rate. Subscription fees are non-refundable. You may cancel your Subscription renewal at any time after you are billed for the then-current month or year, as applicable, and before you are billed for the next period.

Cancellation Policy

You may cancel the automatic renewal of your Subscription at any time. If you subscribed through Apple, you must cancel through the Subscriptions section of your Apple account settings. If you subscribed through the Merch Cat website, you may cancel through your Artist Profile in the Merch Cat app or on the Merch Cat website. Cancellation will take effect at the end of your then-current monthly or annual billing period, and access will continue through that period. Subscription fees already paid are non-refundable, except where otherwise required by applicable law. Merch Cat may, in its sole discretion, issue a refund or credit on a case-by-case basis.

License

In consideration of your use of the Service, you grant Merch Cat and its affiliates without compensation a non-exclusive, royalty free, sub-licensable, perpetual and irrevocable worldwide right to collect, use, and disclose data collected to third parties to effectively provide the Service. In the event you opt-in to Merch Cat’s Luminate data sharing program, MerchCat may share sales and transaction data with Luminate, including proof of invoices or validation evidencing the transactions at any of the live events, and any data transmitted to Luminate by Merch Cat will be subject to the applicable agreement between MerchCat and Luminate and may be used by Luminate in accordance with that agreement and applicable law.

You also grant Merch Cat permission to identify you, including your likeness, image, voice, logo, and/or name, in the Service, public announcements, and marketing materials.

You acknowledge that Merch Cat, in order to provide its Services, may utilize third party vendors and may share your data with them.

Responsible Use / Code of Conduct

As a condition of participation in the Service you will not use the Service for any purpose that is unlawful or prohibited by this Agreement, or any other purpose not reasonably intended by Merch Cat. Further, your use of the Service will be in conformity with the Merch Cat Code of Conduct below. Merch Cat may remove any content or Artist Account at any time for any reason at its sole discretion. Merch Cat may modify the terms of this Code of Conduct, in our sole discretion, by posting amended terms to the MerchCat.com website. Your continued use of the Service indicates your acceptance of the amendments.

The Code of Conduct is as follows:

When using the Service, activities that are not permitted include, but are in no way limited to, the following:

• to act in an abusing or threatening way;
• to intimidate or impersonate anyone;
• any illegal acts;
• any infringement of intellectual property rights;
• any commercial activities not approved in writing by Merch Cat
• You will not post, email, or otherwise make available Content (defined below):
• that is unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another’s privacy, or is harmful to minors in any way;
• that is pornographic;
• that harasses, degrades, intimidates or is hateful toward an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
• that impersonates any person or entity, including, but not limited to, a Merch Cat employee, or falsely states or otherwise misrepresents your affiliation with a person or entity;
• that includes personal or identifying information about another person without that person’s explicit consent;
• that is false, deceptive, misleading, or deceitful;
• that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, or Content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
• that constitutes or contains “affiliate marketing,” “link referral code,” “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or unsolicited commercial advertisement;
• that constitutes or contains any form of advertising or solicitation;
• that includes links to commercial services or web sites;
• that advertises any illegal service or the sale of any items the sale of which is prohibited or restricted by any applicable law;
• that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
• that disrupts the normal flow of dialogue with an excessive amount of Content (flooding attack) to the Service, or that otherwise negatively affects other users’ ability to use the Service; or
• that employs misleading email addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the Service.

You agree not to:

• contact anyone who has asked not to be contacted;
• “stalk” or otherwise harass anyone;
• collect personal data about other users for commercial or unlawful purposes;
• use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the Service – unless expressly permitted by Merch Cat;
• post irrelevant Content, repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure;
• attempt to gain unauthorized access to Merch Cat’s computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Service or Merch Cat website; or
• use any form of automated device or computer program that enables the submission of postings on Merch Cat without each posting being manually entered by the author thereof (an “automated posting device”), including without limitation, the use of any such automated posting device to submit postings in bulk, or for automatic submission of postings at regular intervals, or engage in any other acts which could be considered “gaming the system”.
• use “bots” or other automated methods to create Accounts.

Abuse

To report any abuse of the Service please use the contact form at: https://www.merchcat.com/

Content

All postings, messages, text, files, images, photos, video, sounds, or other materials (“Content”) posted on, transmitted through, or linked from the Service, are the sole responsibility of the person from whom such Content originated. You are entirely responsible for any item of Content that you post, email or otherwise make available via the Service. Merch Cat does not control, and is not responsible for, Content made available through the Service, and by using the Service you may be exposed to Content that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Merch Cat makes no representation or warranty as to the accuracy, completeness or authenticity of the information contained in such Content.

You must evaluate, and bear all risks associated with, the use of any Content or any reliance on said Content, and in no circumstances will Merch Cat be liable in any way for any Content or for any loss or damage of any kind incurred as a result of the use of any Content made available via the Service. You acknowledge that Merch Cat does not pre-screen or approve Content, but that Merch Cat shall have the right (but not the obligation) in its sole discretion to refuse, delete or move any Content that is available via the Service for any reason.

Trademark and Copyright

Merch Cat LLC, Merch Cat, MerchCat.com, Merch Cat, MerchCatFAN.com, the Merch Cat and Merch Cat logos, and other names, logos, icons and marks identifying Merch Cat and Merch Cat products and services are trademarks of Merch Cat LLC and may not be used without the prior written approval of Merch Cat. You may not duplicate, copy, or reuse any portion of the copyrightable elements of the Service without express written permission from Merch Cat. All rights not expressly granted in this Agreement are reserved.

Termination

Merch Cat may terminate, modify, or suspend any and all Service, and your Artist Account, immediately and without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Upon termination of your Artist Account, your right to use the Service will immediately cease.

If you wish to terminate your Artist account, you may simply discontinue using the Service or contact Merch Cat through http://www.MerchCat.com/contact (Merch Cat will attempt to complete any termination requests within 30 days of receipt). All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnities, and limitations of liability.

Warranties Warranty Disclaimer; Liability Limitation

YOU EXPRESSLY AGREE THAT USE OF THE SERVICE AND/OR ANY OTHER CONTENT YOU DOWNLOAD FROM THE SERVICE IS AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF FILES, SOFTWARE, SERVICES AND/ OR OTHER CONTENT. THE SERVICE AND/OR OTHER CONTENT YOU DOWNLOAD FROM THE SITE ARE PROVIDED ON AN “AS IS” BASIS. MERCH CAT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MERCH CAT MAKES NO WARRANTY THAT THE SERVICE AND/OR ANY OTHER CONTENT YOU DOWNLOAD FROM THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES MERCH CAT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED.

IN NO EVENT WILL MERCH CAT OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICE, ANY PLATFORM APPLICATIONS OR ANY OF THE SITE CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM THE SERVICE, EVEN IF MERCH CAT IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, MERCH CAT ’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO MERCH CAT FOR THE SERVICE DURING THE SIX (6) MONTHS PRECEDING ANY GIVEN CLAIM, BUT IN NO CASE WILL MERCH CAT ’S LIABILITY TO YOU EXCEED $200 USD. YOU ACKNOWLEDGE THAT IF NO SUMS ARE PAID TO MERCH CAT FOR THE SERVICE, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM MERCH CAT, REGARDLESS OF THE CAUSE OF ACTION.

NOTHING IN THESE TERMS WILL EXCLUDE OR LIMIT OUR LIABILITY FOR FRAUD, DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE, OR FOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

External Links

Merch Cat may provide links to other websites or resources, however Merch Cat is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Merch Cat shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.

Indemnity

You agree to indemnify and hold Merch Cat, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with any content, any third party content you post or share on or through the Service, your conduct in connection with the Service or Merch Cat or with other users of the Service or Merch Cat, or any violation of this Agreement, any law or the rights of any third party.

General

Entire Agreement

This Agreement constitutes the entire agreement between you and Merch Cat regarding the use of the Service, superseding any prior agreements between you and Merch Cat relating to the Service. The failure of Merch Cat to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision in that or any other instance. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. No variation to this Agreement will be binding upon Merch Cat unless it is made in writing and signed by a director or officer of Merch Cat.

Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles. Disputes arising in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts of the State of New York. You waive any claim that any legal proceeding (including any tort claim) brought in accordance with this clause has been brought in an inconvenient forum or that the venue of that proceeding is improper.

Terms of Sale

Merch Cat FAN: An Artist may opt in to the Fan Service via their account profile in the Merch Cat app. Upon doing so, Artist is subject to and will be deemed in agreement with the Merch Cat Fan Agreement available on the Fan Service website.

Payments

Payment Processing Fees

Merch Cat FAN currently uses Square (“Square”) as its payment processor. Each Artist must maintain a Square account and agree to Square’s applicable terms. Square will deduct its then-current online transaction processing fee from each Merch Cat FAN transaction. This fee is separate from, and may differ from, Square’s processing fee for in-person transactions made through the Merch Cat point-of-sale service.

Merch Cat App Fee

Merch Cat will deduct an App Fee equal to seven percent (7%) of the merchandise and shipping charges for each Merch Cat FAN sale. Square’s applicable online transaction processing fees are deducted separately.

Artist Proceeds

The Artist will receive the remaining proceeds after applicable fees and authorized deductions.

• International payments if applicable, and certain payment methods may give rise to higher payment processing costs. We will seek to ensure that your proceeds are not lower than agreed on account of payment processing costs.
• Artist may cease the use of the Fan Service at any time, by turning it off in their Merch Cat app profile. Artist is solely responsible for any refunds or merchandise due to the purchaser at that time.
• We do not make any guarantees with respect to the timing of receipt of funds to the Artist’s Square account, which may be subject to payment processing or other delays. Do not take any actions in reliance on the receipt of funds until you are in receipt of cleared funds.

ChargeBacks and Refunds

Artist is solely responsible for refunds and chargebacks. If, for any reason, Merch Cat is required to refund monies, the Artist will fully compensate Merch Cat for the amount refunded as well as any associated costs, including but not limited to transaction or administrative costs.

Shipping Charges and Merchandise Fulfillment

For Ship to Home orders, Merch Cat uses the shipping charge to purchase the shipping label. Merch Cat does not provide merchandise fulfillment. The Artist is solely responsible for fulfilling all merchandise orders, including providing the merchandise to the purchaser through the selected delivery or pickup method.

Intellectual Property

Merch Cat shall not own nor be responsible for the intellectual property to the merchandise sold on the Service and Fan Service. Artist grants to Merch Cat a non-exclusive, worldwide license to (i) display and distribute any artwork, photographs supplied by the Artist, liner notes, metadata, track data lyrics and editorial content relating to the recordings, and (ii) use on a perpetual basis the name (including professional name(s)), likeness, performances, photographs, and biographical material of each performer, producer, and songwriter featured on a recording, in connection with promoting the Artist’s Account or Merch Cat .

Representations, Warranties and Indemnities

Artist hereby warrants and represents that: (i) It has the right and power to enter into and fully perform all of its obligations under this Agreement; (ii) It has the authority and right to provide the Fan Service with the rights granted herein; (iii) Merch Cat’s exercise of the rights granted herein will not infringe upon any copyright, trademark, right of publicity, moral right or other proprietary, intellectual property, contractual or other right of any person anywhere in the world; (iv) None of the Content nor any other content provided to Merch Cat by the Artist violates any applicable laws or regulations, including, without limitation, defamation and obscenity laws; (v) The recordings do not include any unlicensed samples or interpolations and the Artist shall have the sole responsibility to ensure, as necessary, that all recordings are fully licensed; (vi) No agreement of any kind entered into by Artist does or will interfere in any manner with Merch Cat’s complete performance of this Agreement, or with the rights granted to Merch Cat herein; and (vii) Merch Cat shall not be required to make any payments to third parties in connection with exploitation of any recordings, compositions, or Content hereunder. Artist will defend, indemnify, and hold harmless Merch Cat, its parents, subsidiaries, affiliates, and their respective directors, officers, employees, and agents, with respect to any claim, demand, cause of action, or debt or liability brought by or claimed by any third party, including attorneys’ fees, to the extent that any such claim is based upon or arises out of a breach of any of Artist’s representations, warranties, covenants, or obligations.

Tax or other financial obligations

Artist will be fully responsible for any taxation or other financial obligations arising out of its participation in the service. If, for any reason, Merch Cat is required to pay any monies relating either directly or indirectly to an Artist’s account, Artist shall fully reimburse Merch Cat for those amounts within 30 days of being informed of these payments and Merch Cat shall be entitled to retain for its account any payments otherwise payable to Artist.